Probation trial jury submitted 281 questions to judge

Has added a new dynamic to an already complex case

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Former Probation commissioner John J. O’Brien and two top deputies are charged with unlawfully doling out jobs to the friends and family members of the politically connected in exchange for favors from state legislators.

Some jurors wanted a copy of the witness list. Then they requested more notebooks. One juror asked for help in remembering the prosecutor’s name.

But sometimes the jurors in the Probation Department corruption trial dug even deeper, asking the judge to put questions directly to the witnesses and lawyers, an unusual request that demonstrated the jurors’ high level of interest in the testimony.

In all, the jury submitted 281 questions by the time it began deliberating Wednesday morning, often in handwritten notes to US District Judge William G. Young, who then posed scores of those questions to witnesses. The jury resumes its deliberations Monday.

The submitting of questions has added a new dynamic to an already complex case, which featured 60 witnesses and 104 questions for the jurors to consider as they weigh whether three top Probation Department officials ran the department like a criminal enterprise.

Allowing jurors to pose questions is “a little unorthodox,” one attorney said. Another legal observer said it could bring unexpected dimensions to a case, even helping the prosecution by asking questions they failed to raise.

“People want to be inquisitive. They think they’re picking up on something,” said Anthony Fuller, an attorney with the firm Collora LLP and a former federal prosecutor who was part of the team that convicted disgraced House Speaker Salvatore F. DiMasi.

The questions came before the judge explained the charges to the jury, which usually takes place after testimony.

“They don’t know the law yet,” Fuller said. “But it can give the jurors a way to feel they’re more involved in the process in the trial.”

The jurors have been so attentive that they have asked for post-it notes, tabs, and tape to use during their deliberations as they review the hundreds of exhibits that were submitted. Since deliberations began, they’ve asked three questions about fraud, and asked for a written transcript of the testimony of a key witness, Francis Wall, a former deputy probation commissioner who outlined the alleged scheme.

Former Probation commissioner John J. O’Brien and top deputies Elizabeth Tavares and William Burke III are charged with unlawfully doling out jobs to the friends and family members of the politically connected in exchange for favors from state legislators. Prosecutors allege that the probation officials committed fraud by creating a bogus hiring process to make it look as though they were complying with policies and procedures.

Defense attorneys argue that nothing their clients did was illegal, that it was simply patronage typical of Beacon Hill politics.

The practice of permitting jurors to ask questions during a trial is rare, but it has been approved by the courts before. The US Court of Appeals for the First Circuit upheld the practice in a case Young presided over in 2002, though the court noted the potential for interfering with the course of the trial.

“Although we think that this practice may frequently court unnecessary trouble, we find no error in the circumstances of this case,” the appeals court wrote in its decision.

Young has refused to address some of the juror questions, though he did not explain why.

Legal analysts said even proper management of the process by a judge could carry some confusion for jurors. One might feel slighted if a question is not asked, or may try to compete with other jurors to get questions asked. Or, a juror may be trying to inject a theory into a question.

Rosemary Scapicchio, a noted Boston-based defense attorney, said she has increasingly seen more judges allow questions in the state courts, and she wonders whether the process can by itself influence a jury. “I think it’s a dangerous step,” she said. “In order for you to generate those questions, you have to be an advocate for one side or the other, and that’s where the problem comes in. You shouldn’t want a juror to be in a position to advocate for one side or the other before all of the evidence comes in.”

Scapicchio added that the government has the burden of proving a case, and the jurors shouldn’t be helping by asking questions that prosecutors failed to ask.

Daniel Medwed, a law professor at Northeastern University, pointed out, however, that jurors could be more engaged if they feel they are part of the trial from the start.

“It kind of thrusts them into the process in a more active way,” Medwed said. “Are they giving more questions because they’re more attentive, or are they more attentive because they’re told they can ask questions?”

As far as the probation trial goes, he said, “It’s a complicated case, so maybe the nature of the case lends itself to more questions.”

Whatever the cause or effect, the Probation trial jurors sought more details about the case.

Questions asked by jurors showed they wanted more instructions on the law, for example, and they also saw gaps in witness testimony.

“Were your ratings [of job candidates] based on your interview notes?” one juror asked witness William Mattei, who served on a hiring panel.

Another juror asked earlier in the trial, “Is there an updated Trial Court procedures manual?”

“In general, what would have been the basis for a ‘red flag’ being raised for Probation appointments,” one juror asked retired chief justice Robert A. Mulligan earlier this month.

One asked about the process of transferring funds from one budget to another, part of a dispute between O’Brien and Mulligan. Another juror asked about O’Brien’s interaction with a judge who served on a hiring panel.

And one juror asked midway through the trial, after Young had reminded them that patronage alone is not a crime, “Can we have a legal definition of the term racketeering?”